State ex rel. Adkins v. Lien

• Decision Date: 28 October 1896
• Citation: State ex rel. Adkins v. Lien, 9 SD 297, 68 NW 748 (S.D. 1896)
• Parties: STATE OF SOUTH DAKOTA ex rel. GEORGE ADKINS, Applicant, v. E.E. LIEN et al., Respondents.
• Court: South Dakota Supreme Court

9 S.D. 297

68 N.W. 748

STATE OF SOUTH DAKOTA ex rel. GEORGE ADKINS, Applicant,

v.

E.E. LIEN et al., Respondents. South Dakota Supreme Court Original Proceedings Peremptory writ granted. D. C. Thomas, W. R. Thomas, Aiken & Bailey & Voorhees Attorneys for relator. Howard Babcock, State’s Attorney A. S. Crossfield for defendants. Opinion filed Oct. 28,1896

FULLER, J.

This original application for a writ of mandamus, made by the state, on the relation of George Adkins, is to compel the board of county commissioners of Roberts county to submit the question of the location of the county seat of said county to the voters thereof, in conformity with Sec. 2 of Art. 9 of the constitution of this state, which will receive merited attention with reference to its application to the undisputed facts presented, which, as the record stands, must be treated as verities. To the petition of the relator the defendants demurred, on the following grounds:

“(1) That the application upon which the writ is issued and based does not show that the person making the same was properly interested.

(2) That the application upon its face does not state facts sufficient to warrant the issuance of the writ.

(3) That the application does not upon its face show that the necessary steps were taken to require or demand that the board should act upon the petition presented.

(4) That the act sought to be compelled cannot be compelled by this proceeding.”

This demurrer was overruled, and, in the absence of a properly verified answer, the matter was heard and determined on the papers of the applicant, who is shown to be a citizen of the United States, and a resident, freeholder, taxpayer, and elector of said Roberts county. It further appears that by a special act of the territorial legislature, passed and approved on the 9th day of March, 1885, said county seat was established at Wilmot, from which place it has never been removed; that said, county is organized, and the county seat thereof has never been located by a majority vote; that, at least sixty days before the next general election, a p Under our view of the facts admitted by the demurrer and established at the hearing, no further recital thereof is essential to a proper consideration of the questions of law to be determined. As disclosed by the record, this proceeding was instituted to procure the enforcement of a public right—a matter of general interest to every voter and taxpayer of Roberts county, each one of whom, as a party beneficially interested, is entitled to compel by mandamus the performance of such public duty, specially enjoined upon the defendants as a board of county commissioners. The rule that, where the relief sought is a public matter or one of public right, any taxpayer or elector may apply for and obtain a writ of mandamus, in a proper case, to enforce the performance of such public duty, rests firmly upon reason, and is sustained...